OH1: No govt’l immunity for property taken in search not listed

When property is taken under a search warrant and listed on the return, the government has immunity for taking it. It does not, however, have immunity for property taken that is unlisted. Brown v. City of Cincinnati, 2020-Ohio-5418, 2020 Ohio App. LEXIS 4298 (1st Dist. Nov. 25, 2020):

[*P17] Unlisted Property. Finally, we conclude that the city did not establish summary judgment entitlement to immunity for conversion of the Unlisted Property (items not reflected in the city’s reports, Exhibits A and D). The Ohio Supreme Court explains that “a party seeking summary judgment * * * bears the initial burden of informing the trial court of the basis for the motion * * * .” Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Thus, to obtain summary judgment regarding the Unlisted Property, the city must “specifically point to some evidence * * * which affirmatively demonstrates that [Mr. Brown] has no evidence to support [his] claims.” Id. Here, the city simply argues that it never possessed the Unlisted Property in the first place. The city may well be correct. But as we have already noted, the merits of this case exceed the scope of our appellate review at this juncture. State ex rel. Deem, 4th Dist. Meigs No. 17CA3, 2017-Ohio-2937, at ¶ 9. We are only concerned with whether the Unlisted Property (if seized) was taken pursuant to a governmental function. And viewing the evidence in a light most favorable to Mr. Brown, the city’s affidavits demonstrate only that it took the Listed Property pursuant to the search warrant. Thus, if the city does in fact possess the Unlisted Property (as Mr. Brown insists), the city failed to establish at summary judgment that it did so pursuant to a governmental function.

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